Reference: FOI Response to Fiona Watts

Reference: FOI response to Fiona Watts

Law commission’s response to Fiona Watts’ requests for information relating to the misconduct in public office project

1.1We have dealt with your requests for information under the provisions of the Freedom of Information Act 2000.

1.2This response is to your emails sent to the Law Commissionon:

(1)18 March 2016 at 12:30;

(2)18 March 2016 at 13:23;

(3)19 March 2016 at 08:33;and

(4)21 March 2015 at 02:28.

These emails contained a total of 27 questions.

1.3This response begins with an explanation of the role of the Law Commission and the remit of its functions. It goes on to provide an explanation of the specific remit of the misconduct in public office project. These explanations are intended to provide answers to elements of many of the specific questions asked. Then each of the 27 questions asked are dealt with in the order in which they were received.

1.4Your email of the 21 March stated that the document attached contained your response to Issues Paper 1. Accordingly only specific questions in that document are dealt with here. Any statements you make within that document will be logged as your consultation response and analysed along with all other responses to the paper.

The role of the law commission

1.5The Law Commission is a statutory body set up by the Law Commissions Act 1965. The Commission’s function is to keep the law under review and to make recommendations for its reform so that it better reflects the society we live in and is more user friendly. Our functions are limited by statute.

1.6The Law Commission cannot provide any advice on individual cases or points of law. We also cannot investigate specific complaints or research questions that are not part of our specific reform agenda.

1.7One of the primary focusses of the Law Commission is consultation. We endeavour to consult with as many people and organisations we can, from as broad a spectrum of backgrounds as possible. This allows us to take account of various perspectives, expertise and experience when undertaking review of a particular area of law. As part of this consultative agenda, we welcome contributions through various media, including formal responses to consultation and ad hoc contributions via email. We ensure that all relevant and pertinent issues raised are accounted for in our work.

1.8The work of the Law Commission at any particular time is limited to the specific projects we have undertaken. Under the protocol between the Law Commission and the Lord Chancellor there are two ways in which the Law Commission begins a law reform project:

(1)Firstly, every few years we consult on a new programme of law reform, which is laid before Parliament and sets out the majority of our work for the next few years. In deciding what is to be included in this programme we consult with the public as to areas that are identified as in need of reform. You will be able to contribute to this when the next consultation opens, probably in 2018. For a project to be included in the programme, it must be agreed upon by the Commissioners, and the relevant government minister must give an undertaking to seriously consider our proposals.

(2)Secondly, a government minister may refer a project to the Commission for consideration by the Commissioners as a piece of work outside the normal programme. This will normally be in an instance where the minister has decided that there is a pressing need for reform of an area of law which falls under their brief, and where they consider that the Commission has particular expertise that could be used.

1.9The misconduct in public office project is part of the criminal law team’s current programme of reform.

the misconduct in public office project

1.10The misconduct in public office project is limited to reviewing the criminal offence of misconduct in public office.

1.11It is beyond the remit of this project to make any recommendations in relation to related civil or disciplinary law. The only reference we can make to such provisions are where they have a direct impact on the criminal law. For example, Chapter 5 of Issues Paper 1 contains analysis of alternative methods of redress for misconduct by public office holders in order to establish the legal landscape within which the criminal offence operates. Further, the associated law relating to the civil tort of misfeasance in public office is described in Appendix B to Issues Paper 1. Both this analysis and description is provided to establish the landscape of the criminal offence only, not as a precursor to making any reform recommendations to the tort or disciplinary law as that would be outside the remit of our review.

The current law

1.12As explained in Issues Paper 1, the criminal offence of misconduct in public office is a common law offence. This means that it is not contained in any legislation or statute that has been passed by Parliament. Common law is created and developed in the courts on a case by case basis. The historical development of the offence is described in Appendix A to Issues Paper 1.

1.13One of the questions for the Law Commission when we consider options for reforming the offence will be whether the common law should be replaced with a statutory offence, that is one contained in legislation. The Law Commission has not reached a conclusion on this at present. This will form part of our second publication later this year.

Publications

1.14All publications and updates relating to the project can be found online at

1.15On 20 January 2016 we published Misconduct in Public Office - Issues Paper 1 - The current Law. This is a background paper containing our analysis of the current law relating to the criminal offence of misconduct in public office. We also identify the problems that arise in practice as a result of the current law.

1.16Issues Paper 1 is a public consultation document containing a list of specific questions and we invited responses from any person or organisation who has a view on the analysis contained in the paper.We also invite consultees to provide any further evidence that they may have of problems with the current law, which may assist us in making reform recommendations. The public consultation exercise for this paper was open from 20 January 2016 to 20 March 2016.

1.17We are currently developing our second publication in relation to the offence of misconduct in public office. This will also be a public consultation document to which we will invite responses from all those with an interest in, and knowledge of, the offence of misconduct in public office. This second paper will set out options for reforming the law.We are due to publish this paper later this year.

Public consultation

1.18We consult with the public in a number of ways. The key consultative phases of the misconduct in public office project are as follows:

(1)Pre-publication of Issues Paper 1 – we conducted informal consultation with a number of persons and organisations in order to assist us in understanding how the current law operates in practice and any problems that arise. Seeour acknowledgements at paragraphs 1.28 and 1.29 of Issues Paper 1.

(2)Issues Paper 1 – a public consultation exercise opened from 20 January to 20 March 2016 welcoming responses, from all persons and organisations with an interest in/knowledge of the offence, to questions relating to the current law of the criminal offence and its problems.

(3)Symposium - we hosted a public symposium event at King’s College London on 20 January 2016 to launch Issues Paper 1. There were just under 100 attendees from a variety of backgrounds including whistleblowing campaigners, regulators, government officials, academics, legal practitioners, the press, students and other members of the public, some of whom described themselves as having been involved in misconduct in public office prosecutions. This event was publicised by us on our website, social media and through the event online platform ‘Eventbrite’. It was also publicised by Kings College London.

(4)Future publications – we will be publishing further papers, developing potential law reform proposals, in 2016 and 2017. These will be open for public consultation.

(5)Ad hoc consultation – as stated on our online project page, we have a dedicated project mailbox () and people are invited to get in touch with any questions relating to the offence.

1.19When communicating with those with an interest in this offence we are not able to comment on any particular allegation of misconduct or provide any advice as to how the law would apply to a particular case. Any person with a particular complaint, or seeking advice, must obtain the appropriate legal advice from a suitably qualified person. Issues Paper 1 provides our analysis of the current law. If you are experiencing difficulty obtaininglegal advice, we suggest that you contact either The Law Society or The Bar Council via their websites and

In answer to your specific questions, we respond as follows:

Q1: “Since 2010, what has the Law Commission done to help the police take the law of Misconduct In Public Office much more seriously?”"

1.20We cannot and do not provide advice to any police force as to the application or operation of the current law.

1.21Our public consultation exercises are outlined above. As you will see from this we have spoken with a number of those with a relationship with the police, including the IPCC and the College of Policing.

Q2: “Has the law Commission and The Ministry Of Defence organised any meetings, documents and guidelines that might "best" help organisations (like Suffolk Constabulary) take Misconduct In Public Office a little more seriously?”

1.22The Law Commission is an independent arms-length public body and cannot answer on behalf of the Ministry of Defence. Policing is the responsibility of the Home Office, rather than the Ministry of Defence.

1.23Our consultation process and role are outlined above. The Law Commission does not and cannot provide guidelines to organisations as to how they should operate. Issues Paper 1 contains our analysis of the current offence of misconduct in public office.

Q3: “Does the Law Commission have a main point of contact at The Metropolitan Police? If so, who?”

1.24The Law Commission does not have any allocated points of contact at any of the individual police areas or forces within England and Wales.

1.25During our consultation process a number of individual police officers, some who work with the Metropolitan Police, provided us with their own views as to the operation of the criminal offence of misconduct in public office.

Q4: “Since 2010, has the Law Commission been contacted by The Metropolitan Police for guidelines and clarity in progressing Misconduct In Public Office on behalf of UK citizens? If so, when?”

1.26No. See the explanation above as to the role of the Law Commission. We do not and cannot provide such guidelines and the Metropolitan police have not contacted us for either guidelines or clarity in progressing misconduct in public office.

Q5: “Evidence that the Law Commission has made a best effort since 2010 to ensure that those who consider to be victims of Misconduct In Public Office can access justice in a timely fashion?”

1.27The aim of the Law Commission is to ensure that the law is: fair, modern, simple, and effective. We are unable to assist individuals who consider themselves to be victims of any particular offence to progress their complaints, however, one of our objectives in reforming the law is to make it both more accessible and easier to use.

1.28With regards to Misconduct in Public Office, Issues Paper 1provides an analysis of the current law and its problems and asked consultees for examples of the problems caused in practice. Should delays in access to justice be an issue that is raised we will take account of this in our subsequent paper.

1.29Further, the next paper published as part of this project will be accompanied by an impact assessment. Impact assessments aim to identify practical impacts of a particular law reform option. Where relevant, the speed of a particular legal process can be taken into account in this analysis. The impact assessment has not yet been completed for this project but should delays to access to justice be an issue it will be addressed here.

1.30Finally, the question asks “…since 2010…”. However, work did not begin on the misconduct in public office project until late 2011.The project was included in our 11th programme of law reform, published in 2011.Due to the needs of other law reform projects work on the project was halted August 2012. Work began again in early 2015.

Q6: “What guidelines on Misconduct in Public Office has the Law Commission overseen in order that the legislation may be used by a Person In Litigation?”

1.31The Law Commission does not produce guidelines – see above for the explanation of the role of the Commission. Issues Paper 1 provides our analysis of the current law of the criminal offence of misconduct in public office.

1.32There is no legislation relating to misconduct in public office. It is a common law offence and has therefore been developed by the courts.

Q7: “Does the Law Commission have any remit to assist those UK citizens who cannot access best legal advise in a timely fashion and instead look to the Law Commission for easy to access guidelines on how to resolve maladministration against them by the Public Servants?”

1.33No. See above explanation of the role of the Law Commission.

Q8: “Misconduct In Public Office is being reviewed by the Law Commission again; except for the its website, where and how did this department advertise or promote the deadline of 20th March 2016?”

1.34We seek to promote our public consultation exercises as widely as possible to ensure we gain the fullest engagement we can. The following promotion of our public consultation, and the deadline for responses, has taken place:

(1)The Law Commission website.

(2)Email from the Law Commission to all persons and organisations with whom the project team have had communication throughout the course of the project and others we have been able to identify as potentially having an interest in the law of misconduct in public.

(3)We hosted a public symposium event at King’s College London to launch the paper. This was free to attend and publicly advertised on our website,social media, Eventbrite, by email to all those with whom we have had contact with over the course of project and by King’s College London. All persons notified of the symposium were invited to forward the invitation on to others who might have been interested and we know that many did so.

(4)A press release, sent to national newspapers and other media news sources, the legal press and other organisations that publish newsworthy material concerning the law, selected by our external communications team.

(5)Social media.

(6)Criminal Law and Justice Weekly (6 February 2016).

(7)Various media sources also reported the publication of our Issues Paper 1, the holding of the symposium, and the closing date for consultation responses. These included:

(a)The Guardian -

(b)Lib dem voice -

(c)The Police Oracle -

(d)The Institute of Race Relations calendar of racism and resistance -

(e)The Press Gazette -

(f)Politics Home - (link no longer live)

(g)News Media UK –

(h)Wired Gov -

(i)Police Professional -

1.35Further, Issues Paper 1and the occurrence of our symposium has been promoted by commentators on social media.

Q9: “Please confirm any communications from The Parliamentary Health Service Ombudsman or elected MP's who sought to see the term "maladministration" clarified in respect of "Misconduct In Public Office"?”

1.36We have had no such communication because “maladministration” is not a term used in the legal definition of the criminal offence misconduct in public office and so is not part of our review. Should anyone believe that the concept should, or should not, form part of a reformed offence they will be welcome to respond in those terms to our next publication.

Q10: “Please clarify when did the Law Commission cross reference whether the "discetion" of The Ombudsman made an Ombudsman i)a law unto themselves and ii) possibly immune from civil or criminal prosecution under the Misconduct in Public Office Act?”

1.37We understand from other questions posed (see in particular Question 12 below) that this question raises the issue of whether the Health Service Commissioners Act provides immunity from civil or criminal prosecution. This is not an issue which was considered as part of this project. The Health Service Commissioners Act 1993 (as amended) has no direct relationship with the current criminal offence of misconduct in public office. We are carrying out a review into the criminal offence of misconduct in public office only.See also response to question 11 below.

Q11: “If an Ombudsman repeatedly identifies, side-lines and then ignores the same cycle of miscarriages of justice against thousands of UK citizens; should the Ombudsman be forced to cooperate with an investigation under the remit of Misconduct In Public Office?”

1.38We cannot comment on any particular complaint or case or provide any legal advice. Investigations into allegations of the criminal offence of misconduct in public office will be carried out by the police and we cannot comment on how any particular investigations may, or may not, be conducted.